not be contended to mean the heir at law. This, with the general rule, would, as is presumed, have afforded sufficient authority for an opinion, that a devise of real and personal estate to A. for life, remainder to his "family," would have entitled the heir to the land, and the next of kin to the personal property, if Lord Eldon had not thought it reasonable, that since courts of law permitted the next of kin to take freehold estate by the term "relations," a court of equity should allow the heir to take the personal under the word "family," when the disposition was of both funds. The conclusion, however, seems liable to these observations; that unless the courts of law had construed the word "relations" to mean next of kin, there would have been an intestacy as to the land, from the uncertainty of who was meant by the expression "relations," and the heir would have taken by descent; a consequence which would not have followed if the word adopted had been "family;" for in such a case the law gives the real estate to the heir, either by purchase or limitation, according to the terms of the devise; and a court of equity distributes the personal property among the next of kin : there is, therefore, no necessity to alter the ordinary legal and equitable constructions before mentioned, for the purpose of preventing an intestacy, since the heir can take the freehold estate, and the next kin the personal, without any inconvenience, each class of representatives answering the description of the bequest. And there is no objection to using the word "family" in two different senses in the same will, when it is applied to different subjects; so that it may, consistently with the construction adopted in analogous cases, mean the heir when the subject is freehold estate; and also next of kin when referred to personal property (0) Perhaps the right conclusion may be, that whether the devise of freehold and personal estates be made to A. for life, with remainder to his family, or to the devisor's family after the death of A. the heir will be entitled to the land, and the next of kin to the personal property.

This conclusion, however, can only be drawn when the will affords no intention contrary to the title of the next kin to the personality; for we have seen(p) that an heir may take personal estate under the word "heir," as persona designata. If then the real and personal estates be so devised, that it appears to have been the testator's meaning, that both of them should go and be enjoyed together, it is presumed, in analogy to the case of Gwynne v.Muddock,(q) that as the heir is legally entitled to the freehold estate, he will also be entitled to the personal.

It appears from the foregoing observations, that when no intention appears that the word "family" was meant to designate any particular class of individuals, the next of kin of the person described will be entitled; a title depending upon the same principle which regulates a bequest to "relations" generally.(r)

Since then, the word "family" is a synonimic, with the term "relations," it follows that bequests to "family" are to be contrued by

(0) See Lord Ellenborough's observations in Doe v. Smith, 5 Maule & Selw. 131. (p) Ante, sect. 3. p. 88.

(q) 14 Ves. 488. and see the sect. and page last referred to.

See ante, sect. 5. p. 92. 9 Ves. 319.

the same rules that are to be applied to relations, not only as to the manner and proportions in which the family, i. e. next of kin, are to divide the property among them in compliance with the terms of the will, but also in regard to the particular persons in the class of next of kin, who are to be preferred to others of the same class, in conse-, quence of the descriptions in the bequests: these subjects are minutely considered and detailed in the fifth section, treating of legacies to relations, to which the reader is referred.

It has been noticed, that a legacy to relations does not regularly include those by marriage ;(s) and the principle of that exclusion equally applies when the bequest is to "family;" but a contrary intention of a testator appearing from his testament, will alter the construction.

Thus in the case of M'Leroth v. Bacon,(t) Mr. Lloyd bequeathed to Martha, youngest daughter of W. Rolfe, and wife of M'Leroth, 1000l. which he directed to be paid to her father Rolfe, for her benefit, to be settled by him to her separate use, and as a provision for herself, and for the benefit of her children, if Rolfe should think proper and so direct; or that the whole, or any part of it should be paid and applied "for the benefit of his said daughter and her family, but either immediately or in future, as Rolfe might think most useful and beneficial to her and her family, and as Rolfe should appoint;" the testator empowering him at discretion, to direct the manner in which the legacy should be applied for the benefit of Martha and "her family;" but if Rolfe died without having made such direction, the money was to be paid as Martha should appoint, "to be applied for the benefit of her and her family." Rolfe gave no effectual direction for the application of the money, and Martha, in exercise of the power, appointed by deed 800l. of the 1000l. to her husband absolutely, and the dividends of the residue she settled upon herself for life, remainder to her husband for life, with remainder as to the capital to her children, &c. To carry into effect that appointment, was the object of the suit by Martha and her husband; and the question was, whether the appointment to him was authorized by the power? Lord Alvanley was of opinion in the affirmative, upon construction of the whole will, which enabled Rolfe, had he done so, to advance any part, or the whole immediately, or in any way he thought, under all circumstances, most beneficial for Martha and her family; terms that would have authorized him to make an advancement for setting up the husband in trade. Such being the meaning and effect of the power given to Rolfe, his Honour conceived that his daughter Martha was intended to have similar authority and discretion, if her father omitted to exercise his own; so that under those circumstances, her appointment to her husband was valid, as being within the terms of the power explained by the context of the will.

With the last case we shall introduce the second class of authorities,(viz)—

2. Where the bequests were not immediate to the objects comprised in the word "family," but were connected with a power of appointment.

(*) Ante, p. 106.

(t) 5 Ves. 159.

In treating upon the word "relations," it was shown that when a testator delegates to an individual a power to distribute a fund among such of his (the testator's) relations as he pleases, that person may, notwithstanding the Statute of Distributions, by which that term is in general construed, appoint to persons not comprehended within the Act; and that if he make no appointment, a court of equity will distribute the property among the testator's next of kin living at the death of the donee of the power.(u) It is presumed, that the same rule is equally applicable, where the property is so given to the testator's "family" and the word is to be construed synonimous to "relations."

If then a testator give his residuary personal estate to "such of his family as A. shall appoint," or to A. for life, and afterwards "to such of A.'s family as A. shall appoint," A. may appoint to relatives not within the Statute of Distributions; or if he die without executing his power, the Court of Chancery will divide the fund among the next of kin living at the death of A. To the cases referred to in note(u), that of Cruwys v. Colman, (x) may be added. There Dorothy Cruwys appointed her sister Bridget, sole executrix and residuary legatee; desiring that Bridget at her death, would bequeath "to those of her own family, what she had in her power to dispose of, that was the testatrix's." Bridget made no such disposition, and her nephew, who was her sole next of kin at her decease, claimed the whole residue in that character, in preference to the testatrix's next of kin living at her decease. Sir W. Grant decreed in favour of the nephew, as next of kin of Bridget; observing, that this was a trust for her next of kin, and so declared in the will; and not for the next of kin of the testatrix; but which made no difference is this case; for that "where a power of selection was given in favour of a testator's own relations, and that power was not exercised, the property undisposed of, would go to the next of kin, at the death of the party who had the power. Therefore, even if this had been a trust for the testatrix's "family," it would have been for such as were next of kin at Bridget's death; so either way, the nephew was entitled to the whole of the property."

But if A.'s authority, instead of a power of selection, be confined merely to ascertaining the shares of such of the testator's "family" as could claim under the Statute of Distributions, and who would be the next of kin; then if no appointment be made, or if made, should it be void by the nomination of relations not within the Statute, the testator's next of kin living at his death, would alone be entitled to the property, as being the sole objects of the power.(y)

SECT. XI. Legacy to "NEPHEWS AND NIECES."

The reasoning in the cases stated in the eighth and ninth divisions of the second section of the present chapter, applies to bequests to nephews and nieces, and to which the reader is referred.

In the case of Falkner v. Butler,(z) the testator directed the residue of his personal estate to be invested in the names of trustees, in trust for his wife for life; and after her decease, the principal to be

(u) See ante, sect. 5, p. 97, and the cases.

(x) 9 Ves. 319, and see Wright v. Atkyns, Coop. 120.

(y) See Pope v. Whitcombe, 3 Meriv. 689, stated supra, p. 96. (z) Amb. 514.

paid among such of his relations, sisters, nephews, and nieces, as his wife should by will appoint. The wife surviving the testator, by will appointed 700l. part of the funds, to George Olave, the testator's nephew in law, in trust for his children. Sir Thomas Sewell, M. R. was clearly of opinion that the power of appointment was confined to nephews and nieces, and could not be extended to great nephews and nieces.

The recent case of Shelley v. Bryer,(a) is a stronger case to the same point; inasmuch as there was there strong ground to argue, that at least one of the testator's great nieces was intended.

In that case, the testator gave the produce of the sale of his residuary real and personal estate, after the death of his sister, Susannah Shelley, equally to be divided between his nephews and nieces who might then be living. By codicil, he gave to his infant niece, Harriet Shelley, whom he had not then seen, the sum of 500l. over and above her share, after the decease of his sister, in the body of his will treated of more at large.

Harriet Shelley, the infant legatee, was a great niece of the testator. At the time of the testator's death, he had several nephews, two great nephews, but no niece, nor any great niece, except the plaintiff. Previously to Susannah Shelley's death, several great nephews and great nieces were born. It was contended that the plaintiff, though a great niece, must be included as being specifically named in the will. The great nephews and great nieces contended, they were entitled to be included as nephews and nieces, the testator having shown his meaning in the use of the words nephews and nieces, by calling Harry Shelley his niece, she being in fact, his great niece. For the nephews it was contended, that the cases deciding that the word "children" did not comprehend "grand-children," governed the present, and that the implication contended for, could not be allowed to enlarge the express meaning of the words used; and that it was only a mistaken recital of a legacy. Sir Thomas Plumer, M. R. concurred in the argument for the nephews, though he confessed there was difficulty on both sides; but his Honour thought it was better to abide by the terms which were express, than to take upon himself by inference, to enlarge them, either to let in the plaintiff or the other great nephews and nieces.

SECT. XII. Legacies to "FIRST and SECOND COUSINS." Lord Kenyon, M. R. determined in the case of Mayott v.Mayott,(b) that under a bequest to all the testator's first and second cousins of the name of Mayott, first cousins of that name once removed, living at the testator's death, were entitled with a first cousin of the same name. There appeared to be no person at the decease of the testator of the name of Mayott, who was strictly the second cousin. SECT. XIII. Bequests to "GOVERNMENT."

A legacy to government for the benefit of the public, is to be disposed of under the King's appointment by sign manuel. The Crown is to direct its application to a proper use.

Accordingly in Newland v. Attorney General, (c) Abraham Newland bequeathed stock "to his Majesty's government in exoneration (a) 1 Jacob, 207. (b) 2 Bro. C. C. 125. ed. by Belt. (c) 3 Meriv. 684.

of the national debt." Lord Eldon directed the fund to be transferred to such person as the King should appoint under sign manual. SECT. XIV. Legacies to Servants.

1. In order to answer the description of servant so as to be included in a bequest "to servants," it seems essential that there should be a contract between the testator and the claimant, out of which the relation of master and servant could arise, and also such an engagement as would entitle the master to the service of the individual during the whole period, i. e. during each and every part of the time for which he contracted to serve. If, then, an individual were in the employ of a testator in consequence of an agreement between the testator and another person, and the servant was not only in the employ of the testator, but also of the person contracted with; or if from the nature of the engagement and service, the person employed could not be considered a servant in the usual acceptation of that word, he would not be entitled under a bequest to servants. The following cases will illustrate the above observations.

In Chilcot v. Bromley, (d) Mr. Bromley, after giving legacies to two of his servants, if in his service at his death, bequeathed to his "other servants" who should be living with him at that time, 50l. a piece, and 101. each for mourning. He revoked the two latter legacies by a codicil, and gave "to all his other servants, in lieu thereof 500l. each, and 201. each for mourning." Under this bequest, the plaintiff, a coachman, who was provided for the testator by a job-master, together with a carriage and horses in the usual course of business, claimed the legacies bequeathed to servants by the codicil, and evidence produced on both sides (which was contradictory) was admitted to prove and disprove the plaintiff being servant to the testator in the usual acceptation of the term. Sir W. Grant decided, that the plaintiff was not a servant within the intent and meaning of the will. And in Townsend v. Windham, (e) the Duke of Bolton bequeathed a year's wages" to such of his servants as should be living with him at his death." The Court declared, that stewards of courts, and such other servants as were not obliged to pass their whole time in their master's service, were not servants within the meaning of the bequest; remarking at the same time, that it could not confine the terms of bequest to such servants only who lived at the testator's house, or had diet from him.

2. It is observable, that part of the description of the servantlegatees required their being in the service of the testator at the time of his death; a circumstance which, in general, must be complied with. Still a servant may be considered by a testator as continuing in his employment, and be intended to take under the bequest, although he quitted the testator's house previously to his death. The evidence admissible in such case is, that the person was in reality in the service of the testator at his death, so as to answer the description in the instrument; and to establish which fact, declarations of the testator upon the subject cannot be rejected; but testimony that the testator meant a servant, notwithstanding his having left the testator's service, to take a legacy bequeathed to servants only in his (d) 12 Ves. 114. (e) 2 Vern. 546.

VOL. I.

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